MORAL RIGHTS: LIMITED EDITION LIOR ZEMER∗ INTRODUCTION ............................................................................................. 1519 I. THE MORAL RIGHTS CODE ................................................................ 1523 II. REDRESSING THE AUTHOR ................................................................ 1528 A. Spiritual Childs, Textual Integrity, and Giftedness ................... 1528 B. Author-as-Steward ..................................................................... 1534 C. Authors, Ownership, and Originality ........................................ 1535 III. BLACKSTONIAN MORAL RIGHTS ....................................................... 1541 IV. THIN MORAL RIGHTS ........................................................................ 1544 A. The Construction of the Authorial Self ...................................... 1544 B. Lockean Authorial Selves .......................................................... 1548 V. DISCLAIMERS, WAIVERS, AND DURATION ........................................ 1555 A. Moral Rights Enclosure ............................................................. 1555 B. Public Rights, Private Truth, and “Strange Bedfellows” .......... 1561 CONCLUSION ................................................................................................. 1567 INTRODUCTION Copyright is a state mechanism designed “to enhance the democratic character of civil society.”1 The law provides creators with exclusive property rights as incentives to produce and disseminate creative wealth. The law also recognizes a set of limitations to these rights in order to maintain a vibrant public domain. “Who is an author?” is a question that the law does not explicitly address. An intuitive response to this question is that authors are laborers that imbue and fix their personal qualities in creative expressive commodities. In this way, authors participate in the nurturing process of our cultural reality. That is, the act of producing creative commodities involves, aside from internal calls and external motivations for recognition and reward, physical labor and talent, the “honor, dignity and artistic spirit of the author in a fundamentally personal way,” representing “the author’s intrinsic dimension of creativity.”2 ∗ Lecturer in Law, Interdisciplinary Centre Herzliya, and Visiting Assistant Professor, Boston University School of Law. For helpful conversations or comments on previous drafts, or both, I would like to thank Wendy Gordon, Ann Bartow, Adolf Dietz, Kim Treiger Bar-Am, Miriam Bitton, Laura Heymann, Irena Zolotova, and the participants in the symposium on The Boundaries of Moral Rights held at the Radzyner School of Law Interdisciplinary Centre Herzliya, Israel, held on December 2010. 1 Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J. 283, 288 (1996). 2 ROBERTA ROSENTHAL KWALL, THE SOUL OF CREATIVITY: FORGING A MORAL RIGHTS 1519 1520 BOSTON UNIVERSITY LAW REVIEW [Vol. 91: 1519 This view of the institution of copyright holds that authors are entities of both economic and moral stature. Certain legal systems provide moral rights protection to authors similar in strength to the set of economic rights. “In contrast, American copyright law rewards economic incentives almost exclusively and lacks adequate moral rights protections.”3 Changing the lack of moral rights protection in the United States requires serious conceptual and legal changes. It requires compromising the purity of American copyright tradition. This compromise has been the subject of ample debates in legal scholarship. The Soul of Creativity, by Professor Roberta Rosenthal Kwall, is the most recent exposition attempting to redefine the scope of moral rights and debate this compromise. In her study, Kwall does to moral rights what Margaret Jane Radin did to the economics of property almost three decades ago.4 Kwall’s new book vigorously reminds us to seriously challenge the lack of protection to the expressions of authorial and artistic personalities in the United States copyright tradition. In this Essay I join Kwall’s argument that “traditional law and economics analysis fails to capture fully the struggles at the heart of . intellectual property law.”5 Kwall claims that legislation regulating moral rights in the United States “not only is poorly drafted, but also reflects questionable and seemingly inexplicable choices.”6 This brings her to conclude that a modern copyright regime absent a strong moral rights protection conflicts with basic norms of authorship morality. This Essay is a dialogue between a proponent of moral rights and opponents of these rights. The argument builds on Kwall’s multidimensional theoretical groundwork and the paradigmatic formula she proposes for moral rights protection specific to American legal ideology.7 I concur with her on certain issues and depart on others, attempting to show that her vision for the proper boundaries of moral rights is, theoretically and practically, a too-limited edition of what moral rights ought to be, even for an American copyright audience.8 LAW FOR THE UNITED STATES xiii (2010) [hereinafter KWALL, THE SOUL OF CREATIVITY]; see also Roberta Rosenthal Kwall, Inspiration and Innovation: The Intrinsic Dimension of the Artistic Soul, 81 NOTRE DAME L. REV. 1945, 1983-91 (2006) (arguing that “appropriately crafted moral rights protections foster the objectives of the [Constitution’s] Copyright Clause”). 3 KWALL, THE SOUL OF CREATIVITY, supra note 2, at xiii. 4 See generally Margaret Jane Radin, Property and Personhood, 34 STAN. L. REV. 957 (1982). 3 5 Madhavi Sunder, IP , 59 STAN. L. REV. 257, 263 (2006). 6 KWALL, THE SOUL OF CREATIVITY, supra note 2, at 147. 7 Kwall began exploring the possible adoption of moral rights to U.S. copyright law in her seminal article Copyright and the Moral Right: Is an American Marriage Possible?, 38 VAND. L. REV. 1 (1985). 8 Changing U.S. copyright law to incorporate a more suitable regime of moral rights requires grappling with three intersecting considerations: “the existing provisions in VARA, the constitutional issues concerning enhanced protection, and the practicalities of 2011] MORAL RIGHTS 1521 The Soul of Creativity is an exciting read that reaches far beyond existing studies on moral rights. It is the first book to offer a thorough, sustained, profound, and sophisticated account of the much-neglected doctrine of moral rights in American copyright jurisprudence. These qualities make Kwall’s approach one of the most important juridical studies written in recent years on moral rights in the common law part of the globe.9 The problem with moral rights, as Amelia Vetrone writes, is that “[a]rt, when it is created, is honest. It tells us so much and gives us so much. If the people who own it have the right to change it they can make the art say what they want it to”10 and discount the honesty with which the artist freed his work to the world. In this Essay I make a stronger case for moral rights than Kwall did, which is necessary to deal more adequately with the honesty problem in copyrighted materials that moral rights were invented to solve. Attempting to negotiate the gap between textual integrity and freedom to create,11 creativity and commerce, inspirational motivation and ownership,12 and between authorship morality and copyright economic objectives, Kwall’s contribution is both conceptual and normative. Conceptually speaking, her contribution lies in her profound articulation of a conception of moral rights consistent with basic principles of American copyright law, while the normative contribution is reflected in her recognition of a set of rights without which copyright law is incomplete and lacks basic “authorship morality.”13 In this Essay I shall focus on both her contributions and her call to adopt a stronger – yet, “narrowly crafted”14 – version of moral rights in American copyright law. Although Kwall and I agree on various issues, two main points of departure explain the contrasting philosophical approaches we favor in copyright. First, while Kwall presents a neo-romantic approach to moral rights, viewing these rights as reflecting the authorial properties of authors, I argue that authorial personalities are not the sole dominion of authors. One of the difficulties in contemporary copyright discourses is that we tend to ignore issues such as the origin of authorial and artistic knowledge. In the words of Michael Madison: “How do ‘creative’ works of authorship come about? We care about the copyright system because we care about the answers to these successfully implementing stronger protection.” KWALL, THE SOUL OF CREATIVITY, supra note 2, at 147. 9 For other significant recent developments, see MIRA T. SUNDARA RAJAN, MORAL RIGHTS: PRINCIPLES, PRACTICE AND NEW TECHNOLOGY (2011), and ELIZABETH ADENEY, THE MORAL RIGHTS OF AUTHORS AND PERFORMERS: AN INTERNATIONAL AND COMPARATIVE ANALYSIS (2006). 10 AMELIA V. VETRONE, THE LEGAL AND MORAL RIGHTS OF ALL ARTISTS 8 (2003). 11 KWALL, THE SOUL OF CREATIVITY, supra note 2, at 43-44. 12 Id. at 20-21 (explaining how an author’s inspirational motivations correlate to her moral ownership over the meaning and message of the work). 13 Id. at xvi, xviii, 4-5. 14 Id. at 58, 61, 157. 1522 BOSTON UNIVERSITY LAW REVIEW [Vol. 91: 1519 questions, yet the questions are rarely asked in a formal way in connection with copyright debates.”15 Authorial personalities are socially constructed entities and, as such, cannot be justified as the authors’ exclusive